ZAHOS & ANOR v INDUSTRIAL RELATIONS COMMISSION OF NSW & ORS [2005] NSWCA 427

New South Wales Court of Appeal

CITATION: ZAHOS & ANOR v INDUSTRIAL RELATIONS COMMISSION OF NSW & ORS [2005] NSWCA 427

HEARING DATE(S): 20 October 2005

JUDGMENT DATE: 6 December 2005

JUDGMENT OF: Mason P at 1; Basten JA at 74; Brownie AJA at 75

DECISION: Order for prohibition

CATCHWORDS: INDUSTRIAL RELATIONS COMMISSION – jurisdiction – whether clear threatened excess of jurisdiction – co-venturers in restaurant business – lease agreement forfeited for non-payment of rent – variation sought on grounds of unfairness –indemnity provision – amendment to originating process in the Commission foreshadowed – whether the lease is a contract whereby a person performs work in an industry – conduct of lessor – where lessor issued directions in renovation/fit-out work – where agreement to provide rent holiday in return for modification of premises – collateral agreement – Brown v Rezitis claim – limitations on remedial power under s106(5) Industrial Relations Act 1996 – where putative benefits derived by a party have no real connection with a contract that attracts the Commission's jurisdiction – whether subterfuge or culpable association in themselves provide the relevant jurisdiction connection. (ND)

LEGISLATION CITED: Industrial Relations Commission Rules 1996, r18A(1)

Brown v Rezitis (1970) 127 CLR 157 Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales & Ors (2003) 57 NSWLR 212 CASES CITED: Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales & Ors (2004) 60 NSWLR 558 Stevenson v Barham (1977) 136 CLR 190 Unitedglobalcom Inc & Ors v Industrial Relations Commission of NSW in Court Session & Anor [2005] NSWCA 131, 142 IR 204